Until the XIX century There were no clear ideas on theoretical, and practical levels about the concept of the Institute of Legal Entities. One of the first to scientific research on the concept of a legal entity turned the founder of the historical school law F.K. Savigni. His teaching entered the story entitled "Theory of Fiction" and had a serious impact on subsequent scientific research.
E.N. Trubetskoy, argued that "the concept of a subject of law does not coincide at all with the concept of a particular, living individual, due to such incurred by entities of law, institutions and society can be recognized, and for this it is not at all necessary to resort to fiction. 75
75 Trubetskaya E.N. Encyclopedia Law. St. Petersburg, 1998. P. 168.
The main criterion in determining the legal status of a legal entity is a personal law of a legal entity, since it determines its state affiliation, "nationality". Nationality is a legal entity to a certain state. The following criteria allocate in legal literature to determine the nationality of a legal entity:
1) the theory of incorporation (the personal law of a legal entity is the right of the state, where the legal entity has been created and registered), this criterion adheres to the countries of the Anglo-Saxon system of law;
2) the theory of the center of operation (the personal law of the legal entity is the law of the place of implementation of its main activity);
3) the theory of settling (the personal law of the legal entity recognizes the law of the location of its administrative center);
4) The theory of control (legal entity has the nationality of that state where the founders of this legal entity (or are citizenship).
The legislation of each state enshrines its criteria in solving the issue of a personal law of a legal entity.
By virtue of Art. 1202 Civil Code of the Russian Federation76 The personal law of a legal entity is the right of the country of institution of this legal entity. In paragraph 2 of this article, there is a list of issues that are subject to permission in accordance with the personal law of a legal entity: the status of the organization as a legal entity, the legal form of a legal entity, the requirements for the name of a legal entity, the creation, reorganization and liquidation of a legal entity, Including the issues of succession, the content of legal entity, the procedure for acquiring a legal entity of civil rights and the adoption of civil duties, internal relations, including the relations of a legal entity with its participants, the ability of a legal entity to respond to their obligations, the questions of the responsibility of the founders (participants ) A legal entity for its obligations.
The legal status of foreign legal entities on the territory of the Russian Federation is determined, firstly, the rules established by the legislation of the Russian Federation and, secondly, the provisions enshrined in international treaties to the Russian Federation with other states.
Foreign legal entities according to the rules established by the legislation of the Russian Federation can carry out economic activities on the territory of the Russian Federation, unless otherwise provided by federal law. The legal status of foreign legal entities is contained in the Civil Code of the Russian Federation, as well as in the Law "On Subsoil" in 1992, in federal laws: "On the Continental Shelf of the Russian Federation" 1995, "On agreements on the division of products in 1995," On Foreign Investments in Russian Federation "1999
Investment activities of Russian legal entities are carried out in accordance with the legislation of the Russian Federation, the legislation of foreign states and international agreements.
Questions regarding the procedure for the implementation by Russian legal entities activities in the territory of a foreign state are solved in accordance with the internal legislation of the country where the Russian legal entity operates.
The Russian legal entities abroad disseminate the provisions of international treaties: agreements on the promotion and mutual protection of investments, trade and economic cooperation, on avoidance of double taxation, bilateral legal assistance agreements operating in Russia's relations with other countries, as well as the provisions of local legislation.
International legal entities that are created on the basis of an international treaty, or legislation of two or more states and more transnational corporations should be distinguished from national legal entities.
In the scientific legal literature, a single concept or clear definition of a transnational corporation does not exist. MP Bortova writes that "TNK is a special form of organizing the economic activity of a company based on the work of the work of employees of enterprises located in different countries of the world and the United States Property Title on the means of production, and such activities are aimed at suppressing competition and strengthen domination in world commodity markets, What is the essence of the Economic Policy TNK. Distinctive features of TNK are: a huge scale of property and economic activity; high degree of transnationalization of production and capital as a result of the growth of foreign production activities; special nature of socio-economic relations inside TNK; The transformation of the overwhelming majority TNK into diversified concerns "77.
To date, the system of a global device has already developed, in which transnational corporations control up to half of world industrial production, 63% of foreign trade, as well as about 4/5 patents and licenses for new equipment, technology and "know-how". Under the control of TNK there is a 90% of the global market of wheat, coffee, corn, timber, tobacco, jute and iron ore, 85% of the copper and bauxite market, 80% tea and tin, 75% - bananas, natural rubber and crude oil. Half of the US export operations is carried out by American and foreign TNK. In the UK, their share reaches 80%, and in Singapore - 90% .78.
L.A. Longz, characterizing TNK, notes: "The set of such vertical on the basis of the subordination of the system of formations does not have a legally decorated unity. From a legal point of view, this is a conglomerate of legal entities of various "nationalities"; Each of the parties included in this system of various kinds scattered, as stated by various countries, may be a legal entity with their personal statute (on the basis of the place of incorporation or domicile) "79.
Transnational corporations transform the world economy into international proceedings, providing acceleration of scientific and technological progress in all its areas - the technical level and product quality, production efficiency, improvement of management forms, management of enterprises.
The following type of legal entities are offshore companies. Offshore is a legal entity registered in jurisdiction with preferential taxation, in the absence of currency control. This is a company that does not lead economic activities in the country of its registration, and the owners of these companies are non-residents of these countries. For Russian firms, one of the main reasons for creating offshore companies is the ability to open an account in a foreign bank, which allows you to obtain additional control levers. The activities of offshore companies received the widespread dissemination in the financial sector: banking, securities transactions, holding structures.
77 Bortova M.P. Modern problems of transnationalization of production and capital // Management in Russia and abroad. 2000. № 3. P. 21.
78 Kasatkin A.A. Transnational Corporations: Modern Economic and Legal Analysis // Legislation and Economics. 2013. No. 9. C.1.
79 Longs L.A. Course of international private law: in three volumes. M., 2002. P. 69.
Bibliography
1. Bortova M.P. Modern problems of transnationalization of production and capital // Management in Russia and abroad. 2000. № 3. S. 118-128.
2. Civil Code of the Russian Federation. Part Three dated November 26, 2001. № 146-ФЗ // SZ RF. 2001.№ 49. Article 4552.
3. Kasatkin A.A. Transnational Corporations: Modern Economic and Legal Analysis // Legislation and Economics. 2013. No. 9. P.9-17.
4. Lunch L.A. Course of international private law: in three volumes. - M.: Spark, 2002. - 1007c.
5. Trubetskaya E.N. Encyclopedia Law. - SPb.: Jerical. In-T, 1998.- 183c.
2. Legal entities in the CDAM
Legal entities as the subjects of the ICT are divided into two basic categories:
1) National legal entities:
Domestic legal entities;
Foreign legal entities;
2) international legal entities.
Under nationalitylegal entity it is understood by his belonging to a certain state . The definition of the nationality of a legal entity is necessary, firstly, to clarify whether it is a domestic or foreign subject of law; Secondly, to establish his personal statute responsible for questions about the status of this education, whether it is a legal entity, what is the procedure for its occurrence and termination, the volume of legal capacity, organizational structure, etc.
The legislation of Ukraine establishes various criteria for determining a foreign legal entity in certain areas of legal regulation.
As a general criterion for determining the nationality of legal entities in the domestic right, the criterion of the institution site is applied. GK of Ukraine enshrines that the legal capacity of foreign enterprises and organizations at the conclusion of transactions on foreign trade and on the associated settlement, insurance and other operations is determined by the country's law, which establishes an enterprise or organization. Thus, the personal law of legal entities is the law of the country in which they were established.
Today, the question of the recognition of foreign legal entities can be solved both in the domestic law and in international treaties. The generally accepted principle of the ICT is, automatic and unconditional recognition of foreign legal entities. A legal entity that received the status of a subject of law according to the laws of one state is recognized as a foreign entitle of the right to the territory of another state.
Foreign legal entities confirm their status of an extract from the trade, banking or judicial register of the state in which a legal entity and law enforcement of whose law enforcers emphasizes its civil legal personality, as well as constituent documents certified in the prescribed manner. Unless otherwise established by the International Treaty; These documents should be legalized and translated into the language of the country where their use is assumed.
The legal status of a foreign legal entity is determined by:
1) a personal law (status) of a legal entity (the law of its state affiliation);
2) the law of the state in the territory of which the legal entity is carried out.
International legal entities are:
1) legal entities created directly by the International Treaty or on the basis of the National Law, adopted in accordance with the International Treaty, the founders of which states or other sovereign laws are advocated;
2) legal entities created and operating in accordance with the norms of international treaties, the founders of which are subjects of private law (European Company, European Association with a common economic goal, etc.). Such legal entities do not have nationality, their personal statute is international law and order.
Legal regime of foreign legal entities on The territories of Ukraine are determined by domestic legislation and international treaties of Ukraine and depends on the legal characteristics of the legal entity itself (international or foreign legal entity, a legal entity of public or private law, a commercial or non-commercial organization, etc.) and the type of activity carried out (economic, including Entrepreneurial, investment, charitable, religious, etc.).
The following types of regimes may apply to foreign legal entities:
National (there are always significant exceptions);
Greatest favored;
Non-discrimination;
Special.
Legal regulation of activities of foreign legal entities is carried out:
With regard to economic activities - the economic code, "On foreign economic activity", "On the regime of foreign investment", "On the agreements on the sale of products", "On concessions", etc.;
For other activities, the laws "On associations of citizens", "On charity and charitable activities", "On freedom of conscience and religious organizations" and other legislative acts - depending on the legal status of the legal entity and the content of its activities.
The special group consists of the norms of the tax law of Ukraine, determining the procedure for taxation of foreign legal entities (the law of Ukraine "On the taxation of the profits of enterprises", bilateral conventions and agreements on the avoidance of dual taxation).
Representative offices of foreign legal entities in Ukraine Can be divided into four main groups that differ in the registration procedure and legal status:
1. Representative offices of foreign business entities - This is an institution or person representing the interests of a foreign economic entity, activities in Ukraine and with properly decorated appropriate authority. The representation of a foreign entity of economic activity is not a legal entity and is not engaged in independent commercial activities, in all cases it acts on behalf of and on behalf of a foreign entity of economic activity.
2. Permanent representation of non-resident in Ukraine - A permanent place of activity through which non-resident economic activity is fully or partially carried out in Ukraine. Permanent missions, in particular, include: management place, branch, office, factory, factory, workshop, mine, oil or gas well, quarry or other place of intelligence or mining. The term "representation" is used in this case to designate the constant presence of a foreign legal entity in the national economy, the implementation of economic activities on the territory of Ukraine, the income on which taxes are subject to taxes on the legislation of Ukraine.
3. Branches, branches, offices and other structural cells of public (non-governmental) organizations of foreign states in Ukraine .
4. Representatives of international intergovernmental organizations . Opened and operate on the territory of Ukraine on the basis of international agreements of Ukraine with relevant international organizations. Possess immunity and privileges inherent in these international organizations as sovereign subjects of international public law.
Two types of international organizations are allocated in the ICT:
1. International interstate (intergovernmental) organizations (MMO) - created on the basis of an international treaty, whose participants and, accordingly, states of these organizations are states or other sovereign subjects of international public law.
Over the past decades, not only foreign, but also in domestic scientific and educational literature on international private law, the concept of "international legal entities" was very actively discussed. In most cases, it is noted that the international legal entities should be discussed when they are created by an international agreement (Agreement), such as, for example, the International Bank for Reconstruction and Development, the International Monetary Fund, the European Bank for Reconstruction and Development, Interstate Eurasian Association of Coal and Metal CIS countries, interstate bank, also created within the CIS, etc. MM Boguslavsky notes that in the Soviet legal literature, the concept of an international legal entity was applied for the first time in connection with international banks created by the CEV-MBS Member States (International Bank of Economic Cooperation) and MIB (International Investment Bank).
Approaching the concept of consideration from historical positions, it should be emphasized that at one time the creation of legal entities of this kind through the conclusion of an interstate agreement was atypical phenomenon and was almost always accompanied by the withdrawal of them from under the action of the general norms of national civil, commercial, customs, tax or other The branches of the relevant state, as a result, the legal status of such education could differ from such any other legal entities operating in a particular country (whether national or foreign). This seems to be binding to the allocation of so-called "international legal entities" into a separate category. In today's conditions of international relations in the creation of appropriate education (corporate or other type) by concluding an intergovernmental or interdepartmental agreement, first of all, in view of the fact that the phenomenon of the association of persons and capital on a cross-border scale has been sufficiently scope and on civil-legal level, there is no need to establish Any special - "greenhouse" - conditions for the functioning of such associations.
All submission of a legal entity by the national law enforcement of the relevant state (as a rule, the state of the location of the main office of the organization) relies the need, except for the purpose of clarifying the genesis (origin), in qualifying it as an "international legal entity", and consequently, the allocation of the named category in general. Thus, in the agreement of the CIS countries "on assisting in the creation and development of industrial, commercial, financial, insurance, mixed transnational associations" dated April 15, 1994, the unified procedure provides that transnational associations are legal entities under the legislation of the state of their registration. The status of branches (branches) and representative offices of transnational associations is determined in the constituent documents in accordance with the legislation of the location of the branches (offices) and representative offices (Article 5). This indicates that transnational associations can be created both on the basis of intergovernmental agreements and by concluding contracts directly between business entities (Article 3). In the development of this current legislation of the Russian Federation, first of all, the Federal Law on Financial and Industry, adopted on November 30, 1995 (No. 190-ФЗ), operates in categories "Transnational Financial and Industrial Group", "Interstate Financial and Industrial Group".
These terms are understood as follows: Financial and industrial groups are associations, among whose participants there are legal entities under the jurisdiction of the CIS member states, which have separate divisions on the territory of these states or capital investments on their territory are registered as transnational financial and industrial. groups in accordance with federal law ("transnational financial and industrial groups"); and an interstate (international) financial and industrial group (in the event of the creation of a transnational financial and industrial group based on an intergovernmental agreement). Features of the creation, activities and liquidation of the interstate financial and industrial group are established by intergovernmental agreements. At the same time, for their participants, the national regime is established by intergovernmental agreements on the basis of reciprocity. The participants of the Interstate Financial and Industry Group in the manner and under the conditions established by the Government of the Russian Federation may be provided with customs tariff benefits provided for by the Law of the Russian Federation "On the Customs Tariff", on goods transported across the border as part of the activities of this financial and industrial group. It should be emphasized that, in the sense of the law mentioned, these formations are not executed by a legal person as some new quality in relation to the participants within their composition, and operate on the basis of civil-legal contracts.
As can be seen, in general, the design of "international legal entities" does not fit as an additional category in the conceptual series, existing in the science and practice of international private law, namely: "National legal entity" - "foreign legal entity", and in any case should Turn on either in one or another group.
For example, a transnational association established in the Russian Federation in accordance with the International Treaty of CIS countries will be "national" for Russia and foreign for all other states. The association established in the same way in Belarus will be "its" in this country and foreign - in Russia, Ukraine, Kazakhstan, etc., i.e. Belarusian for all other countries.
The British Petroleum transnational corporation will consist of a number of national legal entities depending on which jurisdictions are formed by its subsidiaries, Indian, Russian, Dutch, Nigerian, Cyprus, Maltese, Ukrainian, Kazakh, etc. rights . Thus, now the existence of this term has a material basis, can be misleading. Its use must be accompanied by at least refinements and explanations.
"Offshore" companies. Due to the extensive strengthening of economic interaction and internationalization of trade and production relations between various countries of the economic situation, many countries have to compete with each other for attracting additional cash and other funds in their economy. At the same time, any entrepreneur at a certain stage faces the problems of management, reporting, with the need to enter international markets of the company, as well as the duty to pay sufficiently high taxes in some cases. There is a question about the means to solve these problems. Currently, one of the very practiced means of this kind is offshore business.
The legal content of the concept of "offshore business" is that there is a new one, in the legal sense of "independent" entity of economic relations. This mechanism is used for various purposes, including tax planning, etc. (risk management; gain access to international financial and investment services, etc.). Undoubtedly, tax planning is one of the main directions and motives not only to create, but also the development of offshore business. It should be emphasized that the term "tax planning" is peculiar to more Western economic and legal science and practice. In the Soviet, Russian, as well as economic and legal literature of other CIS countries, it has so far been actively used only in relation to the analysis of the situation in the economy of the developed countries.
For the Russian Federation, the concepts used in this regard (offshore business, "offshore company") are not only relatively new, but also controversial in some respects. So, for example, a very common opinion was that the "offshore company" category cannot be considered as a legal concept. However, today, it seems that it is no longer true, since there are examples of legislative consolidation of this term, and in its opposition of another category - "internal company" ("in shore company"), as is the case in England, Cyprus, Virgin Islands (Brit.), Bahamas, etc.
Thus, the legal content of the concept of "offshore company" in modern meaning implies such education predominantly corporate type created within certain jurisdictions, which is not entitled to conduct production, trading and in general any economic activity within the establishment state, and, therefore, according to The territories in force in most such jurisdictions are not subject to taxation within its limits, but is a legal entity incorporated (established) in accordance with the legislation of the latter.
Complete one of the most famous examples of the use of structures offered by offshore business for the goals of minimizing taxation. This is a scheme developed by the Dutch concern "Philips". Its essence is as follows: A subsidiary company was established at the Bermuda of the Concern - the Insurance Company Kingstone Kepit Inshuerens, the only client of which the Philips Concern itself was. At high rates, the property of the concern was insured, including such that, which is usually not insured, because the chances of his damage or death are insignificant. The corresponding amounts of insurance premiums began to translated abroad of Holland - on Bermuda. From there, funds in the form of loans were provided to the maternal society. In combination with insurance payments, the amount of payment for the use of the loan significantly changed the volume of profits and, therefore, reduced the taxable base. Savings only for one year period amounted to several million dollars. The main factor in this chain is its legal invulnerability.
The species concept used as part of the generic - "Offshore company" is "Company of International Business" (from English "" International StrongSiens Company "). In this, it is known to a number of territories that have mainly dependent or similar to it, and sometimes the status of independent sovereign states providing preferential tax regimes ("tax shelters"), which contributes to the establishment within their limits of a significant number of foreign companies operating in the international Civil turnover. As a rule, international businesses cannot exercise economic activities within such territories or states. Among them, first of all, the so-called offshore zones - Cyprus, Liechtenstein, Luxembourg, Malta, Panama, Singapore, a number of USA (Delaware, Nevada, Wyoming, etc.), British dependent areas that are not included in The composition of the United Kingdom of Great Britain and Northern Ireland and use a certain degree of self-government, including its own legislation, as well as territories of other states: Bermuda, Virgin, Cayman, Falkland Islands, Gibraltar, Hong Kong (now Shanggan), Islands Terek and Kaikos, Maine, Jersey, Guernsey , Netherlands Antilles, etc. One of the main requirements for the establishment and operation of international business companies is a condition for conducting activities exclusively abroad of a particular state or territory. In addition, due to the provisions of local legislation, it is necessary to have a registered jurisdiction of the administrative center (the Center for Office of the Company's Office), the appointment of the company's citizens' directories of this country, financing the company from sources outside of this territory. [Abdullin A.I. The formation and development of the science of international private law in Russia: the problem of understanding the nature of international private law in the works of Russian lawyers of the XIX century // Journal of International Private Law. 1996. № 3 (13)]
8.4. International organizations in international private law
Considering the issue of the legal status of international organizations (primarily intergovernmental, interstate) organizations in the international private law, it should be emphasized that the design of the international legal contract as the basis of the activities of the so-called international legal entities is very characteristic of international institutions, since they are created in a similar way and are bodies of cooperation between states or its coordination. The international legal agreement constitutes the constituent act of an international organization that exists and operates in the field of international public law. At the same time, an international organization cannot exercise its international legal activities without being the subject of economic turnover - it should receive from the state of stay and under its sovereignty of communications services, power supply, use postal, telegraph, telephone, rail, cosmic, telegraph and other objects and enterprises, as well as many other benefits and institutions in their daily life.
In order to exist in civil relations, international organizations are endowed with the rights of a legal entity. His formation is authorized by the appropriate law and order. For example, the UN is the legal entity of the state of New York (USA), UNESCO - French legal entity, ILO, WHO, International Union of Telecommunication, International Postal Union, etc. - Legal entities Canton Geneva of the Swiss Confederation, International Monetary Fund - Legal Fund of the Federal District Colombia (USA), IAEA - Austrian legal entity, etc.
International Credit Financial Organization was established by the CIS countries - an interstate bank (hereinafter - the Bank). According to the international legal agreement on the establishment of the Bank, the city of Moscow (Russian Federation) became the place of his stay. As a result, on July 30, 1996, an intergovernmental bank and the Government of the Russian Federation signed an agreement on the conditions of staying an interstate bank in the territory of the Russian Federation. In particular, it is indicated that the Bank enjoys the rights of a legal entity in Russia, it is authorized to enter into international and other agreements, acquire, rented, alienate movable and immovable property and dispose of them, perform other actions aimed at fulfilling the tasks assigned to the bank His charter. Along with this contract and accepted in his performance, the domestic acts of the Russian Federation provided for that the Bank is exempt from all taxes, fees, duties and other payments charged on the territory of Russia, with the exception of those that are a fee for the use of specific service species. Bank officials (according to the list approved by the Bank's Council) are equated in terms of privileges and immunity to diplomatic representatives of foreign countries in the Russian Federation. Taxation of salaries and remuneration paid by bank employees is carried out in accordance with the legislation of the Russian Federation and its international treaties. Privileges and immunities provided by the Agreement do not apply to bank officials who are citizens of the Russian Federation.
At the same time, the Bank is obliged to produce compulsory deductions to the Employment Funds of States, whose citizens are bank employees, as well as in the Pension Funds of States, in which these employees constantly live. Contributions for compulsory health insurance are paid by the Bank in accordance with the procedure operating in the Russian Federation.
The economic activity of international organizations in modern conditions is quite wide. For example, the IAEA, being a specialized UN agencies, is carried out along with the control and coordination of state cooperation direct scientific research in the field of nuclear energy. As part of this direction, the IAEA has launched a system of repayment of research by national institutions of relevant countries and for the purpose of concrete development, in this area concludes contracts with national institutions that have civil law.
Of course, such cooperation tools would be impossible if an international organization had no status of a legal entity - a full-fledged subject of civil relations in the national and legal sphere of a particular state. It is designed that an international organization becomes legal personnel in a civilian sense by education from the date of registration of its statute (institution) or the inclusion in the register of legal entities of the state of location, which, as a rule, is indicated in its constituent documents constituting it primarily as a subject of international public law. In this regard, the legal capacity of such a legal entity is determined by the law of that state in which the headquarters of the international interstate (intergovernmental) institution is located.
For example, in the Eurasian Patent Convention, established by the Eurasian Patent Organization, which is open to any third state, it is indicated: "The organization is an intergovernmental organization that has the status of a legal entity. The organization has in each Contracting State of legal capacity, which is recognized for legal entities in accordance with the legislation of this States. The organization may acquire and dispose of movement and real estate and protect their rights in court. Location of headquarters organization - city Moscow, Russian Federation "(paragraph 5 of Art. 2).
As for the legal status of non-governmental international organizations, it is subject to the general principle of regulation established in the conflict and material norms of the current law of the relevant state.
This is the approach and the current Russian legislation in this matter. Thus, in the letter of the Central Bank of the Russian Federation of September 5, 1994 No. 109 "On Amendments and Additions to the Instructions of the Bank of Russia dated July 16, 1993 No. 16" On the procedure for the opening and maintenance by authorized banks of non-resident accounts in the currency of the Russian Federation "" says: "The legal status of international non-governmental organizations established in accordance with the legislation of foreign states is determined in accordance with Part 1 of Article 161 of the Fundamentals of the Civil Law of the SSR and the Republics of the Union. International non-governmental organizations created in accordance with the legislation of the Russian Federation are residents of the Russian Federation."
the owner of two nationalities. "
Scope of personal statute.The category of a personal statute is extremely important for a legal entity, since it was noted, it is he who answers the main question - whether the person is legal, i.e. Does the will, relatively independent of the will of those uniting in it, in other words, an independent entity of law. Commercial Association (Societe En Nom Collectif, Partnership, Offene HandelsGesellschaft),
created in France will be legal personality education from the point of view of its legislation, as well as in Spain, Portugal, but non-reliable - in England, USA, on the British Virgin and Norman Islands, in Singapore, Germany, Switzerland, etc., although in the last Of these countries behind partnerships, some important rights peculiar to legal entities are recognized. Thus, each foreign legal entity, being created by a specific rule of law, has the last as a personal law. This law enforcement determines all the vital parties of the reality of this phenomenon - the emergence, functioning, continuation of existence or termination, as well as possible methods and forms of transformation. The same rule of law is regulated by the capacity of the legal entity, its limits are established. Personal law of a legal entity, in addition, indicates the form and procedure for the performance of a legal entity in the inner and external economic turnover. The content of the personal statute gives answers to the question of whether it is entitled or not entitled to the legal entity under consideration in its activities to go beyond the domestic jurisdiction and what the conditions, form and special requirements for this exit are. Consequently, the solution of the problems of personal status, personal rights in the relations of this legal entity with third parties is entirely in the sphere of a personal statute.
In the elimination of a legal entity, which operates abroad and has property in the territory of a foreign state, including immovable, personal law, and not the law of location of things, as it usually happens in the CDAM, will solve the fate of the latter. In some cases of mandatory relationships, i.e. Then, when the person's personality in a certain kind of obligations acquires particular importance (for example, when issuing a guarantee or guarantee with an accessor character), the content of the rights and obligations of the Parties will also be subject to the personal law of a legal entity, which is similar to the party, and not the law, Selected Parties to regulate relationships in the framework of the main obligation, or the law applicable
to the essence of the relationship due to the collisional norm.
§ 5. The problem of "international legal entities" in international private law
IN the past of the last decades is not only in foreign, but also in the domestic scientific and educational literature on the CDAM very actively marked the concept of "international legal entities". Suffice it to say that in many manuals and textbooks on this discipline, this phrase is used withoutno reservations on the convention of its use or anything else. In most cases, it is noted that international legal entities should be discussed when they
created by an international agreement (Agreement), such as the International Bank for Reconstruction and Development, the International Monetary Fund, the European Bank for Reconstruction and Development, the Interstate Eurasian Association of Coal and Metal CIS countries, an interstate bank, also created within the CIS, and so on. MM Boguslavsky emphasizes that in the Soviet legal literature, the concept of an international legal entity was first applied in connection with international banks created by CEA member countries: the International Bank for Economic Cooperation (MBES) and the International Investment Bank (MIB).
Approaching the concept of history under consideration from the standpoint of the principle of historicism, it should be emphasized that at one time the creation of legal entities of this kind through the conclusion of an interstate agreement was generally quite rare and was accompanied by almost always withdrawing them from under the action of the general norms of national civilian, commercial, customs , tax or other branches of the law of the relevant state. Such a state was the state of the location of the central bodies of the international legal entity. His legal status could differ from the legal status of any other legal entities operating in a particular country, both national and foreign. This seems to be binding to the allocation of so-called international legal entities into a separate category. In today's conditions of international relations in the creation of appropriate formations (corporate or other type) by concluding an intergovernmental or interdepartmental agreement, first of all, when the phenomenon of the association of persons and capital is truly in a cross-border scale, it has been sufficiently scope and at a civilian level, there is no need to set any special, "Greenhouse", conditions for the functioning of such associations. All legal entity to the national law enforcement of the relevant state makes it necessary, except for the purpose of clarifying its "genesis" (origin), in qualifying it as an international legal entity, and therefore, the allocation of the named category in general. Thus, in the agreement of the CIS countries "On the assistance in the creation and development of production, commercial, credit and financial, insurance, mixed transnational associations" dated April 15, 1994, the unified procedure provides that transnational associations are legal entities on the legislation of the state of their registration. The status of branches (branches) and representative offices of transnational associations is determined in the constituent documents in accordance with the legislation of the location of the branches (offices) and representative offices (Article 5). This indicates that transnational associations can be created both on the basis of intergovernmental agreements and by concluding contracts directly between business entities (Article 3). In the development of this current legislation of the Russian Federation, primarily the Federal Law "On Financial and Industrial Groups", adopted on November 30, 1995 , operates with the categories "Transnational Financial Industrial Group", "Interstate Financial and Industrial Group".
These terms are understood as follows: financial
industrial groups are associations among whose participants have legal entities under the jurisdiction of States Parties to the Commonwealth of Independent States, which have separate divisions on the territories of these states or on their territory capital investments, which are registered as transnational financial and industrial groups in accordance with the Federal Law and as interstate (international) financial industrial groups - based on an intergovernmental agreement. Features of the creation, activities and liquidation of the interstate financial and industrial group are established by intergovernmental agreements. At the same time, for their participants, the national regime is established by intergovernmental agreements on the basis of reciprocity. Participants in the interstate financial and industrial group in the port and under the conditions established by the Government of the Russian Federation may be provided with customs tariff benefits provided for by the Law on the Customs Tariff, on goods transported across the border as part of the activities of this financial and industrial group. It should be emphasized that, within the meaning of the said domestic act, the indicated formations are not executed by the status of a legal entity as a new new quality in relation to the participants within their composition, and operate on the basis of civil-legal contracts.
As can be seen, in general, the design of "international legal entities" does not fit as an additional category in the conceptual series, which exists in the science and practice of international private law, namely: "National legal entity" is a "foreign legal entity", and in any case should Turn on either in one or another group.
For example, a transnational association established in the Russian Federation in accordance with the International Treaty of CIS countries will be "national" for Russia and foreign for all other states.
Established in the same way in Belarus, the association will be "its" in this country and foreign - in Russia, in Ukraine, in Kazakhstan, etc., i.e. Belarusian for all other countries. Thus, now the existence of this term has a material basis, can be misleading. Its use at least must be accompanied by clarifications and explanations.
Transnational corporations.Transnational corporations (TNK) - a phenomenon generated by the development of world economic relations in the XX century. TNCs are usually referred to international monopolies whose activities affect a number of states. Western authors often consider TNCs as subjects of international economic law acting with states and international organizations. Similar views are not accidental, since the fact of the increasing influence of TNK on the national economy of not only developing, but also developed European countries, as well as the world economy as a whole, is well known.
The specific feature of TNK is their heterogeneity and dismemberment from a legal point of view, since powerful maternal education establishes a network of branches and subsidiaries in various countries. On the other hand, it is necessary to emphasize their homogeneity in economic terms. For legal reasons, subordinate to the various jurisdictions of the company included in TNC are managed from one economic center, which personifies the parent company.
TNCs can be formed as uni-organized by the structure of their capital by corporations ("Microsoft", "Rank Cocolars, Coca-Cola", "General Electric", "British Petroleum", "Volkswagen AG", "Mitsubishi", "Credit Lyon" and etc.) and major associations formed by the "internationalization" of capital (Agfa Gevert, Dunlop-Pirelli). In both cases, the monopolistic association spreads its enterprises around the world to increase profits by minimizing the cost of products, the development of new markets and to a certain extent to the departure from the tax burden or reduction, if the legal reality of the relevant country allows this to do. Thus, from a legal point of view, TNK is a combination of formally independent legal entities who have different state affiliations actually managed by a foreign legal entity, i.e. parent company.
As a result, a sufficiently serious influence, which was provided by TNC to the economy, and in a number of situations and policy of host states, in order to prevent interference in their internal cases, members of the international community set themselves the task of developing the International Code of Conducting TNC, the project of which was prepared as part of specially created Ecosos United Nations Center for TNC and Commission on TNK. This Code of Conduct TNK has not yet been adopted by states, since most of them whose national subjects control TNCs, defend the recommendation, and not a legally binding nature of its norms. Meanwhile, the role and influence of TNCs in the world continue to grow, which was reflected in the materials of the IX conference UNCTAD (1996), which state that "corporations should be given the opportunity to participate in multilateral international forums, and emphasizes the need to" start integrating private Sectors and other new actors in the daily activities of UNCTAD. "
European shopping societies. Unification of the right of trading societies.
Within the framework of the European Union (previously European communities - Euratom, EOOS and UES), the problem of the "European" company stood practically from the 60s. An essential element of creating a common market in accordance with the agreement on the establishment of the European Economic Community (Roman Agreement of 1957) is "Freedom of settlement, devices of fishing and private business activities". During this process, the right to establish a business society in any EU State or the right to participate in such a society as one of the main components, which is that enterprises in all countries - EU participants must act in comparable, if not equal, conditions. This goal of creating the most harmonized legal norms that contribute to the interaction of enterprises of different countries in the implementation of private business activities, which is fundamentally contacted in the Rome agreement, has the European law of commercial societies.
As mentioned earlier, the main document of the unified nature is the Brussels Convention on the mutual recognition of companies and legal entities of 1968 - remains not adopted by the EU participating States, although in 1957 the Roman Agreement establishes general signs of EEC entrepreneurial organizations. Under such, in particular, they are understood to "companies or firms established in accordance with the legislation of Member States, registered location, central management and main
the entrepreneurial activity of which is inside the community "(Art. 58).
In these circumstances, unified norms relating to the European law of trading societies are represented by numerous EU acts directive, in each of which general model provisions are formulated. The directive does not act directly. It requires adoption by Member States of national legal acts to implement the content established in the Directive. Since in each individual case, the directive requires States parties to decide certain tasks with the help of funds of national law enforcement, i.e. Must be based on national legal instructions, freedom of discretion remains behind Member States regarding the mechanism of its execution. Thanks to the directives, the highest possible rapprochement and harmonization of the national legislation of the EU countries in a particular area is achieved. Thus, in contrast to the resolution, which has a legally binding nature for states and under its power of subjects (legal entities and individuals), the directive does not have direct obliging force. As a result, within the framework of the proper conceptual content established by the general procedure, the legislation of the EU member states in the field of, for example, trade associations, joint-stock companies and limited liability companies, has a known diversity.
The specified legal means was used by the EU countries to achieve uniformity in regulation, in particular, issues of protection of capital, the creation of joint-stock companies, their mergers and divisions, as well as the content of their statutes (Directive No. 77/91 / EWG of December 13, 1976, 78 / 855 / EWG dated October 25, 1978 and 82/89 / EWG of December 17, 1982). Special attention was paid to the problems of harmonization of legislation and the practice of member states in the field of activity of foreign branches within their boundaries. So,
in directive No. 89/666 / EWG of December 21, 1989 contains provisions on the procedure for publishing information and documents in connection with the creation of foreign companies of branches in the territorymember countries. These provisions relate to both the states of the EU and third countries themselves. The common goal of the Directive is the creation of favorable conditions and protective measures for those who enter through branches in relations with the relevant foreign legal entity. An unified approach is also important and to solve the problem of creating a limited liability company with one member. As is known, not all of the states of the world (and today more than 90 states - from Egypt to South Africa and Zimbabwe, as well as from Spain and Portugal to Singapore - the existence of a limited liability company is generally accepted) recognize the validity of the establishment of societies by the only participant. For example, in Germany, despite the fact that legislation on societies in Germany has been operating since 1892, it became possible only in the modern period due to the development and adoption of a special directive
in framework EU (No. 89/667 / EWG dated December 21, 1989), which is aimed at recognizing everyonemember States created with the participation of one founder of societies limited liability.
In parallel with the unification of legal norms relating to corporate formations and their activities within the framework of national legal systems carried out through the implementation of the Directives, work is underway to
creating relevant decrees providing for new forms of legal entities - unified European trading societies.So, approved the decision "On the European Economic Association on the basis of common interests", which is a new legal form, designed to facilitate cooperation between states and economic entities - production units in the field of merger and medium-sized enterprises in order to increase their competitiveness. The designed design of the economic association involves the elimination of the difficulties of the legal form of economic societies that arose in the past with a similar combination of the legal form of one of the partners, which was often alien to the remaining participants in cooperation. The prepared solutions in this field proceed from the new design, designed by the union of economic entities to create a structure as far as possible adapted to the general interests of participants and overcoming the obstacles to the legal and technical, tax, psychological, administrative and other order. Interested enterprises can take advantage of such a new form on a voluntary basis.
Not yet reached the consent of the EU member states on the issue of unified European joint-stock society,which also thinks as a unified legal form, free from national prescriptions. In addition to the development of model tools related to the joint-stock company, the EU Commission has made suggestions for uniform concepts.
european Cooperative, European Union and European Mutual Society. In addition, the development of pan-Europeanorganizational and legal Forms for persons free professions. At the same time, it is impossible to assume that after approval of such uniform EU documents, legal entities created in the relevant forms should be qualified as the concrete state seized from the limits of jurisdiction, in whose territory they will be established.
"Offshore" companies. Companies of international business. In connection with the resulting strengthening of economic interaction and internationalizationtrade and industrial Relations between different states of the economic situation, many countries have to compete with each other for attracting additional cash and other funds in their economy. At the same time, any entrepreneur at a certain stage faces the problems of management, reporting, with the need to enter international markets of the company, as well as the duty to pay sufficiently high taxes in some cases. There is a question about ways to solve all these difficulties. Currently, one of the very practitioners of such a kind is an offshore business.
When they talk about the benefits of offshore business, usually have in view of the possibility of reducing tax costs and bank account management and the creation of one or several enterprises abroad.
At the same time, in legal terms, the content of the offshore business lies in the fact that a new entity of economic relations appears abroad, which is able to act independently. This mechanism is used for various purposes, including tax planning, etc. (risk management, gain access to international financial and investment services, etc.). Undoubtedly, tax planning is one of the main directions and motives not only to create,
but the development of offshore business. It should be emphasized in this connection that the term "tax planning" is peculiar to more Western economic and legal science and practice. In the economic and legal literature of Russia, as well as other CIS countries, it has so far been actively used only in relation to the analysis of the situation in the economy of precisely developed countries.
For the Russian Federation, the concept of "offshore business", "Offshore company" are not only relatively new, but also controversial in some respects. So, for example, a very common opinion was that the "Offshore Company" category cannot be considered as a legal concept. At the same time, today, it seems that it is no longer true, since there are examples of the legislative consolidation of this term, and in its opposition of another category - the "internal company" ("Inshore Company"), as is in Cyprus, in the UK, Ireland, in the British Virgin Islands.
Thus, the legal content of the concept of "Offshore Company" in modern meaning is an implied education, mainly corporate type created within certain jurisdiction, which is not entitled to conduct production and trade, in general, any economic activity within the establishment state and, therefore, taxation within this territory, however, is a legal entity incorporated in accordance with the legislation of this state.
Modern business structure may have the following scheme: The parent company is an independent legal entity in the tax break zone (offshore firm). In this series, it is possible to include additional links, such as a production or commercial enterprise located in the third jurisdiction. Since the transfer of income directly to Tax Harbor, legal entities often face tax barriers (in most countries, when distributing income to offshore firms, the source tax is additionally charged), such a link becomes necessary.
However, in some countries, bank interest is exempt from this tax, even if they are transferred to firms in "Tax Harbor" (Netherlands, Switzerland). The absence of additional tax interest in these countries in combination with a preferential regime on the translation of other types of income (dividends and royalties) to most developed countries of the world makes them a convenient "transshipment point" in international financial transactions. Therefore, despite the fact that such states do not belong to the offshore zones, they also need to establish enterprises oriented enterprises, using them in structural schemes per minimization of the tax burden.
In international practice, combined schemes are often used, including firms located in the "tax harbors" and in countries with a moderate taxation level: Maine Island - Netherlands; Gibraltar
Switzerland; Cyprus - Greece; Netherlands - the Netherlands Antilles; Switzerland - Netherlands - Isle of Man, et al. However, the appointment of offshore firms is not reduced exclusively to tax planning.
Experts note that offshore systems are very mobile, they can
created under a specific business project or investment program. The offshore company frees the owner from many formal procedures related, in particular, with auditing financial statements and other requirements relating to accounting. Offshore companies are also created to manage the risk, which is to register an enterprise in one zone with the possibility of moving its assets into a more politically and economically stable region of the world. For example, it is unlikely that on the island of Guernsey, where the political system has not changed several hundred years, major changes will occur. Risk management is achieved by creating a flexible and mobile system for the redistribution of assets in order to minimize the risks and increasing the sustainability of the international enterprise.
IN the occurrence of signs of instability and other factors of offshore structures allow you to translate capital to a more reliable region
and create "refuge" for him (for example, establish a trust - trustful property - a well-known institutionanglo-American law). A common way to use an offshore company is to create its representative offices, as well as subsidiaries in foreign countries, for example in Russia.
IN the asset of the funds entitled to take advantage of the offshore company should first of all be called a variety of capital management services, acquisition and operation of formed portfolios of securities of other corporate entities, various forms of investment.
Company of International Business (from English. International Business Company)
The concept, in modern life, the well-known right of a number of territories that have a predominantly dependent or similar status with it, and sometimes independent sovereign states providing preferential tax regimes ("tax shelters"), which contributes to the establishment within their limits of a significant number of foreign companies operating in international civil circulation. As a rule, international businesses cannot exercise economic activities within such territories or states. Among them, first of all, the so-called offshore zones - Cyprus, Liechtenstein, Luxembourg, Malta, Panama, Singapore, a number of United States (Delaware, Nevada, Wyoming, etc.), British dependent territories, which The United Kingdom of Great Britain and Northern Ireland is not part of the United Kingdom and enjoy a certain degree of self-government, including their own legislation, as well as territories of other states: Bermuda, Virgin, Cayman, Falkland Islands, Gibraltar, Hong Kong (now Syangan), Islands Terk and Kaikos, Maine, Jersey, Guernsey, the Netherlands Antilles and others. One of the main requirements for the establishment and operation of the International Business Companies is a condition for conducting activities exclusively abroad of a particular state or territory. In addition, due to the provisions of local legislation, it is necessary to have a registered jurisdiction of the administrative center (the Office of the Company's office), the appointment of the company's directories of this country, financing the company from sources outside of this territory.
Companies of international business (KMB), in particular, at the British Virgin Islands (BVO), in accordance with the laws of the BVA
There are along with public companies, private companies and ordinary partnerships. The latter do not use the status of an independent legal entity. Orthodox, legal status, institution and activities of companies of international business BVA are regulated by the Law on companies in 1885, an order of income tax of 1946, a special order about the 1984 International Business Companies (with amendments, additions and changes), the Law on the Management of Companies 1990, as well as in terms of companies operating in special areas - the law on banks and trust companies in 1990, the Law on Insurance Business (Special Regulations) of 1991. After registering on the territory of the British Virgin Islands, the Company may even change the registration site and continue its existence in accordance with the legislation of another country, if it is allowed by the statutory provisions of this company, the legislation of that other jurisdiction, within which it may be included in the register such an international business established on the BVO, provided that the requirements of the BMU legislation compliance with it About companies international bi Znesa. The constituent documents of the company of international business are primarily as for any other company within the framework of the British Commonwealth of Nations, two documents: "Memorandum of Association" (Memorandum of the Company) and "Articles of Association" (internal regulations of the company). Memorandum regulates the external relations of the company, and the Regulations considered as a contract between members of the Company and the Company - internal (the procedure for the distribution and transfer of shares (shares), changes in capital, holding meetings, voting, appointment of directors, their powers, responsibility to the company and .). Memorandum of the Association of International Business, in addition, should contain the name and address of the registered agent of the company; the size of the company's authorized capital and the number of nominal shares or the indication of their absence; The name of the currency in which promotions are issued; number of categories and number of output issues; List of privileges, rights, restrictions, etc., which are used for a certain type of shares; the provision on the direction of the presenters of notifications about the general meetings of the company and other methods of notification; indication of the possibilities of replacing ordinary shares on, presenters and vice versa; Regulation of restrictions, which are characterized by the company's activities as a company of international business in accordance with the provisions of the National Act - Ordonance 1984 When establishing KMB, the Memorandum is signed by the registered agent specified directly in its content, in the presence of a person who should testify the signature. Articles of Association of the Company should also be issued in a similar way. The planned name of the company should be approved by the registering authority - the recorder of the BVO companies. After payment of the registration fee of the registered company is issued a certificate of incorporation (Certificate of Incorporation). Applications for registration of insurance companies are submitted to insuring inspection, with the establishment of banks, management companies and trust companies - the Inspector on banks and trust companies. All companies have the right to start their economic activities immediately after registration, i.e. No special permission is required. If a certain formation of corporate type, intending to create KMB, improved written before registration
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